243 Conn. 523 | Conn. | 1998
Lead Opinion
Opinion
The defendant, Rafael Delgado, was convicted after a jury trial of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1),
The opinion of the Appellate Court sets forth the following facts that the jury reasonably could have found. “The victim was a sixteen month old baby with Down’s Syndrome who, at the time of her death on December 14, 1992, resided with her mother, Devilyn Bruno, and her mother’s boyfriend, the defendant, Rafael Delgado, in an apartment in Bridgeport. In the spring of 1992, the victim was taken by her aunt to live with her grandmother in Florida. The victim was returned to Connecticut in September or October of 1992. After the victim’s return to Connecticut, the defendant inquired of the aunt when she was taking the victim back to Florida.
“On the same day, Tammy Vargas, a family practice physician at St. Joseph’s Family Medical Center, examined the victim. Vargas had previously examined the victim in April, 1992, at which time she did not notice any bruises on the victim or problems with the victim’s arms or legs. During the examination on November 16, 1992, which was videotaped,
“On December 8, 1992, Bruno had a conversation with Vargas in which she indicated that the victim had a swelling in her thigh. Bruno told Vargas that she thought the swelling was on the same side where the victim had received a shot. Vargas could not recall on what part of the body the shots were given, but, according to the medical records, the victim did receive shots on November 16, 1992. Since Vargas did not see the victim after November 16, 1992, she did not know the cause of the swelling.
“Because Featherston suspected that something was wrong, she asked Bruno when the victim had last seen a physician. Bruno told Featherston that the victim had seen Vargas the day before, November 16, 1992. After Bruno and the victim left her office, Featherston called Vargas and made notes to herself of the visit with the victim because she was ‘very suspicious of what happened to [the victim].’
“Pauline Barnes and her husband, Benjamin Baines, lived in an apartment in Bridgeport below an apartment occupied by a Spanish man, a Caucasian woman and a baby. In the early morning hours of December 14, 1992, they were asleep in their apartment when they were awakened by heavy footsteps in the apartment upstairs. Pauline Barnes recognized the footsteps as belonging to the man upstairs and remembered hearing a loud noise that ‘sounded like someone fell on the floor hard’ or like ‘someone was being thrown to the
“At approximately 4 a.m. on December 14,1992, Benjamin Barnes was awakened by ‘real heavy walking’ followed by a loud noise that shook the whole house. He then heard footsteps going downstairs and out the front door. Ten minutes later, Benjamin Barnes heard the front door open and footsteps going upstairs. Shortly thereafter, he heard ‘the[m] come right back to the same spot that [he] hear[d] the noise before and . . . then they tum[ed] around and [went] back outside.’
“At approximately 4 a.m. on December 14, 1992, Michael Fusaro, an emergency medical technician for the Bridgeport Ambulance Service, was driving an ambulance in Bridgeport with his partner, John Corris, when they were stopped by a man and a woman holding a baby, the victim. Fusaro called the dispatcher to let them know what was going on and then proceeded to assist Corris, who had initiated care to the victim. They then transported the victim to the hospital. The woman sat in the front seat of the ambulance and explained that they had decided to run to the hospital, which was only two or three blocks away, because the victim was crying and having trouble breathing.
“Corris knew the condition of the victim was poor because of her limp state and because her face was blue, indicating that the victim was not breathing. After removing the victim’s snowsuit, Corris noticed that the victim had no pulse. Corris also noticed that ‘the eyes were . . . discolored like bruises around the orbits of the eyes,’ which he called a ‘clinical sign of injury,’ usually indicative of head trauma. Corris put a tube into the victim’s lungs, put her on a heart monitor, and gave her some medication. They also performed [cardiopulmonary resuscitation] on the victim. The victim was placed on a board for the drive to the hospital.
“As a result of her examination of the victim, Spaight filed a report of suspected child abuse with the state department of social services. She did this on the basis of the severity of the head injury, the evidence of old bruises and the fact that the story from Bruno did not appear to be consistent with the victim’s injuries. In Spaight’s opinion, the defendant’s statement also was inconsistent with the victim’s injuries and the cause of the victim’s death, which was cardiopulmonary arrest [that] was caused by the head injury. A postmortem X ray of the victim taken by Maika Shah revealed a healing fracture of the victim’s right upper leg that would have been caused by a ‘tremendous amount of force.’ In Shah’s opinion, the fracture was a minimum of two weeks old, and probably occurred after the victim’s videotaped examination on November 16, 1992.
“With regard to the victim’s death in the early morning hours of December 14, 1992, the defendant testified as follows. He stayed up until approximately 2 a.m. watching television in his bedroom. Between 3:30 and 4 a.m., the defendant was awakened by the victim’s crying, and he went to the kitchen and saw the victim lying on the floor. He gave her a pacifier and a toy and then went back to the bedroom. About five minutes later, the victim started crying again, and when the defendant went back to the kitchen, he saw the victim lying on her back and thought that she was choking on something. He dropped to his knees, grabbed the back of the victim’s neck, squeezed her cheeks and attempted to perform mouth-to-mouth resuscitation. He then put the victim under cold water in the sink. When he realized that none of his efforts were working, he woke up Bruno, and together they tried to revive the victim. Eventually, they got dressed and started running to the hospital. En route, they flagged down an ambulance, which then took Bruno and the victim to the hospital. The defendant testified that he was not aware, when the victim went to the hospital, that she had a head injury.” State v. Delgado, supra, 42 Conn. App. 384-89.
In light of this evidence, the jury returned a verdict of guilty of manslaughter in the first degree and risk of
“General Statutes § 54-57
The court’s discretion regarding joinder, however, is not unlimited; rather, that discretion must be exercised in a manner consistent with the defendant’s right to a fair trial. Consequently, we have identified several factors that a trial court should consider in deciding whether a severance may be necessary to avoid undue prejudice resulting from consolidation of multiple charges for trial. “These factors include: (1) whether the
First, the counts were not so similar as to create a significant risk of confusion or prejudice. With respect to the manslaughter count, the state established that the defendant had committed the crime on a specific date and time, namely, December 14, 1992, at approximately 4 a.m. With respect to the risk of injury count, the state proved that the defendant’s illegal conduct spanned a period of six weeks, from November 1,1992, until December 14,1992. Moreover, the state’s evidence on the manslaughter count demonstrated that the defendant had actively engaged in conduct that caused the victim’s death; by contrast, the state’s evidence proved that the defendant had committed the crime of risk of injury by allowing the victim to be placed in a situation inimical to her health. Finally, the evidence adduced by the state in support of the manslaughter count indicated that the cause of death was a fractured skull, whereas the evidence presented by the state to prove the risk of injury count established that the victim had suffered facial cuts and bruises and a leg injury. Thus, the crimes were committed in fundamentally different time frames, involved fundamentally different conduct, and resulted
With respect to the second factor, we acknowledge that the injuries inflicted on the victim, and especially the head injuries that resulted in her death, are shocking. We disagree with the defendant’s contention, however, that joinder of the counts seriously prejudiced his defense of the manslaughter count.
In addition, the trial court instructed the juiy that each count was a separate offense and, therefore, that the jury was required to consider them individually. Specifically, the trial court, prior to commencing voir dire, stated that “[e]ach count is a separate crime and must be proved by the state individually beyond a reasonable doubt.” In its final charge, the court reminded the jury that “[e]ach count is a separate crime and you must consider them separately in your deliberations.” The trial court thereafter reiterated that “each and every count is a charge of a separate crime and must be proved individually and separately beyond a reasonable doubt.” Moreover, the defendant failed to request any further cautionary instruction regarding the separate nature of the counts and the evidence adduced in support thereof. In particular, the defendant did not request an instruction expressly informing the jury that it was
Finally, the trial, which lasted eleven days and involved the testimony of twenty-five witnesses, was not unusually lengthy or complex. In this respect, this case closely resembles State v. Herring, supra, 210 Conn. 97, an eight day double murder case that involved testimony from twenty-three witnesses. In Herring, we concluded that neither the duration of the trial nor its complexity created a sufficient risk of jury confusion to require a severance of the two murder counts. Id.; compare State v. Boscarino, supra, 204 Conn. 722-24 (consolidated trial of four factually similar but legally unrelated cases, which took ten weeks to complete
We conclude, therefore, that the defendant has failed to meet his heavy burden of demonstrating that joinder of the risk of injury and manslaughter counts resulted in substantial injustice.
The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to consider the defendant’s remaining claims on appeal.
General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person . . . .”
The defendant also had been charged with manslaughter in the first degree in violation of § 53a-55 (a) (3), but was acquitted of that charge by the jury.
General Statutes (Rev. to 1991) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”
The defendant received a sentence of twenty years imprisonment, suspended after seventeen years, and five years probation, on the manslaughter count, and a prison term of ten years, suspended after five years, and five years probation, on the risk of injury count, the sentences to run consecutive to one another.
Chief Judge Dupont dissented from the decision of the majority, concluding that the trial court had not abused its discretion in denying the defendant’s severance motion. State v. Delgado, 42 Conn. App. 382, 399-101, 681 A.2d 327 (1996).
On appeal from the judgment of the trial court to the Appellate Court, the defendant also claimed that: (1) the evidence was insufficient to support the jury’s verdict; (2) the trial court improperly excluded the testimony of a defense expert witness due to an alleged violation of a sequestration order; (3) the trial court improperly admitted evidence of prior injuries to the victim; (4) the trial court improperly allowed into evidence a videotape of the victim and her mother; and (5) the trial court’s charge to the jury was misleading and confusing, resulting in the dilution of the state’s burden of proof. Although the Appellate Court considered and rejected the defendant’s claim of evidentiary insufficiency; see State v. Delgado, supra, 42 Conn. App. 389-92; it did not address the defendant’s remaining claims. The Appellate Court, therefore, will be required to consider those claims on remand.
“The videotape was played for the jury.” State v. Delgado, supra, 42 Conn. App. 385 n.4.
“On cross-examination, Shah admitted that it was possible that the fracture was four months old. This is consistent with the testimony of the defense experts, who opined that the fracture occurred between three and four months prior to the victim’s death.” State v. Delgado, supra, 42 Conn. App. 388 n.5.
General Statutes § 54-57 provides: “Joinder of offenses of the same character. Whenever two or more cases are pending at the same time against the same party in the same court for offenses of the same character, counts for such offenses may be joined in one information unless the court orders otherwise.”
Practice Book § 829 provides: “Trial Together of Informations
“The judicial authority may, upon its own motion or the motion of any party, order that two or more informations, whether against the same defendant or different defendants, be tried together.”
Although the two crimes involved the same victim, we have never concluded that that fact alone necessarily renders the crimes so interrelated as to require a severance. On the contrary, we have expressly indicated that there are circumstances when multiple crimes properly may be joined for trial even though the offenses involved the same victim. See, e.g., State v. Jennings, 216 Conn. 647, 658-59, 583 A.2d 915 (1990) (holding that joinder of two assault charges involving same victim was proper).
It is true that many of the same witnesses testified regarding both the manslaughter and the risk of injury counts. Because the factual scenarios underlying the two crimes were separate and distinct, however, we are not convinced that the jury likely was confused by that testimony.
We also disagree with the dissent’s contention, which was not asserted by the defendant, that at trial, the assistant state’s attorney acknowledged that the counts “did not involve distinguishable factual scenarios.” See footnote 3 of the dissent. The assistant state’s attorney’s comments merely noted that the state intended to use the same witnesses, and that the counts involved the same victim and, to a limited extent, the same time period.
Contrary to the assertion of the dissent, the defendant has not claimed, either in the Appellate Court or in this court, that the manslaughter evidence unduly prejudiced his defense of the risk of injury count. As the Appellate Court expressly stated, and as we have noted, the defendant claimed on appeal to the Appellate Court that “the evidence presented by the state on the manslaughter count was bolstered and shored up by the risk of injury count, thereby resulting in substantial prejudice . . . .” State v. Delgado, supra, 42 Conn. App. 393. The defendant makes precisely the same argument on appeal to this court, claiming that “[t]he evidence introduced [by the state] for the purposes of convicting the defendant under the risk of irvjury charge . . . undoubtedly served to inflame the passions and sensibilities of the jurors regarding the manslaughter count and thereby prejudiced the defendant’s right to a fair trial.” The dissent, quoting from the defendant’s brief, would have us believe that the defendant has also raised a claim that the manslaughter evidence unfairly prejudiced his ability to defend against
In light of the fact that the state, at the time of trial, did not claim that the risk of injury evidence was admissible to prove the manslaughter count, it would have been preferable for the trial court expressly to have informed the jury that the evidence adduced by the state on either one of the two counts was not admissible as proof of the other and, further, that the two cases had been consolidated solely for purposes of judicial economy. We believe that such a charge is appropriate, even if a defendant fails to request it expressly, because it serves to underscore for the jury that it must consider the two counts separately. The defendant in this case, however, has not claimed that the trial court’s failure so to instruct the jury constituted plain error, nor has he established that the instructions given by the trial court were constitutionally defective.
The state maintains that, in any event, the risk of injury evidence would have been admissible at a separate trial on the manslaughter count to prove intent and motive, and to place the crime in the context of nearby and nearly contemporaneous happenings; see, e.g., State v. Ali, 233 Conn. 403, 427, 660 A.2d 337 (1995); and, consequently, that separate trials would have provided the defendant with no significant benefit. See, e.g., State v. Atkinson, supra, 235 Conn. 765. In light of our conclusion that the defendant has not met his heavy burden of demonstrating that joinder of the two counts resulted in substantial injustice, we need not decide whether the risk of injury evidence would have been admissible at a separate trial on the manslaughter count.
The dissent’s assertion that our determination of this case “sets a new standard for consolidating trials”; see p. 551 of the dissent; is entirely unwarranted. Contrary to the dissent’s claim, our resolution of this case is based on well established principles, the propriety of which the defendant has not challenged. Moreover, we reiterate that a trial court’s discretion regarding the joinder of cases for trial must be exercised carefully and cautiously, with due regard for the fair trial rights of the defendant. Thus, the fact that the decision whether to consolidate the counts in a criminal case may be a “close call”; see p. 551 of the dissent; does not, as the dissent suggests, require a different result; as long as a trial court properly exercises its discretion regarding joinder, we will not reverse its considered judgment.
In addition, we are mystified by the dissent’s “problem” regarding the import of the trial court’s jury instructions to consider the cases separately. See footnote 12 of the dissent. As we have explained, we are persuaded that, upon application of the Boscarino factors, the trial court did not improperly consolidate the two cases for trial. In these circumstances, and in the absence of a specific request to charge from the defendant regarding the separate nature of the counts, we cannot say that the trial court’s cautionary instructions on that issue were inadequate.
Finally, the dissent mischaracterizes the thrust of the state’s argument regarding the presence of the Boscarino factors. See footnote 13 of the dissent. Suffice it to say that the state has never suggested, either implicitly
Dissenting Opinion
dissenting. The certified issue in this appeal is whether the trial court abused its discretion in allowing the joinder of the crimes of risk of injury to a child and manslaughter in the first degree with regard to that same child.
Although the joinder of charges for trial is permitted by statute and by the rules of practice; General Statutes § 54-57; Practice Book § 829; and serves the purpose of preserving precious judicial resources, we have recognized that in some cases, joinder can be highly prejudicial. State v. Boscarino, 204 Conn. 714, 722, 529 A.2d
First, the crimes of risk of injury to a child and manslaughter in the first degree in the present case did not involve discrete, easily distinguishable factual scenarios. The “alleged crimes are so similar in time, place and circumstance, there is a danger that the jury may [have used] evidence of one crime to convict the defendant of the other [crime].” State v. Crosby, 36 Conn. App. 805, 809, 654 A.2d 371, cert. denied, 232 Conn. 921, 656 A.2d 669 (1995). Indeed, the state’s attorney argued before the trial court that the counts involved the same time period, the same victim and the same location.
In this case, unlike many other joinder cases involving separate or multiple victims in separate incidents that
Furthermore, in many of the joinder cases decided since Boscarino, our appellate courts have concluded that the counts involved discrete and distinguishable factual scenarios partly because, unlike this case, the state had presented its evidence in an orderly fashion, and kept the evidence for the counts separate at trial. See State v. Jennings, 216 Conn. 647, 659, 583 A.2d 915 (1990) (state presented different eyewitnesses to testify to each incident, and treated two cases separately during examination of witnesses and during closing argument); State v. Frazier, 39 Conn. App. 369, 375, 665
In the present case, the state did not keep separate the evidence relating to the two counts of risk of injury to a child and manslaughter.
Second, the two counts alleged “brutal or shocking conduct” on the defendant’s part. The defendant’s claim that the joinder prejudiced him is based on his legitimate fear that the jury, under the circumstances of this case, might have used “evidence of one to find guilt in the other.” State v. Stevenson, supra, 43 Conn. App. 688. He does not claim, despite the majority’s reliance on the Appellate Court’s one sentence reference, that the joinder prejudiced him only as to the manslaughter count. See State v. Delgado, supra, 42 Conn. App. 393. Rather, he claims, as argued in his brief, that “[b]y consolidating the two cases, the trial court required the jury to undertake the difficult if not impossible task of listening to two somewhat similar cases against the defendant, and yet ignore . . . the inflammatory nature of the allegations of abuse and the alleged cause of the victim’s death.”
Under anyone’s sense of morality, the allegations forming the basis of the risk of injury count — that the defendant acquiesced in the beating or cruel treatment of a sixteen month old child, afflicted with Down’s Syndrome, over a period of time — and the allegations forming the basis of the manslaughter count — that the defendant caused that child to suffer a fractured skull that resulted in the child’s death — concern brutal and shocking conduct.
“Joinder gave the state the opportunity to present the jury with the intimate details of each of these offenses, an opportunity that would have been unavailable if the cases had been tiled separately.” State v. Boscarino, supra, 204 Conn. 723. At trial in this case, the state presented detailed testimony of more than six medical professionals concerning the injuries sustained by the child, including written and videotaped exhibits that demonstrated the extent of her injuries. At least one witness testified that the child’s fatal injury was caused by a tremendous amount of force and likened it to a fall from fifteen feet. For the majority to conclude that this medical testimony “is not likely to incite the passions of the jury” is simply incredible, when the state sought to have the jury infer from that evidence that the defendant “failed to take action to protect” the child from physical abuse by another over a period of time, and that the defendant brutally caused the death of the child.
Third, the evidence the state presented in regard to the risk of injury to a child and manslaughter counts
The majority’s conclusion that the sparse reference in the jury charge that “[e]ach count is a separate crime and you must consider them separately in your deliberations” would cure an improper joinder is not only unrealistic, but is contrary to our precedent.
Finally, the state’s suggestion that the evidence supporting one count may have been admitted at a separate trial on the other count totally ignores the evidentiary rule that to be admitted under one of the prior misconduct exceptions, the evidence must meet two requirements: “(1) it must be relevant and material to the exception claimed; and (2) its probative value must outweigh its prejudicial effect.” State v. Santiago, 224 Conn. 325, 338, 618 A.2d 32 (1992). Even if the prior misconduct evidence was relevant or material, the conclusion that the evidence presented in this case is “brutal or shocking” clearly establishes that any probative value is outweighed by its prejudicial effect. Furthermore, it is inconceivable that, under any circumstances, evidence underlying either count would be admissible
What greatly concerns me is that this result oriented opinion sets a new standard for consolidating trials and that standard can result in grave injustices. It allows the state to introduce highly prejudicial evidence that it would not be able to do otherwise. It sends a message to our trial courts that all joinders will pass muster. Indeed, much to its credit, and unlike the majority of this court, the state conceded at oral argument that this was a “close call.”
One “test of the quality of [our] civilization is its treatment of those charged with crime, particularly with offenses which arouse the passions of a community.” Irvin v. Dowd, 366 U.S. 717, 729, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961) (Frankfurter, J., concurring). If in cases such as this the rights of an accused are compromised because of the nature of the crimes with which he is charged, then the quality of our civilization is severely threatened. Unfortunately, in my view, this case fails the test enunciated by Justice Frankfurter.
Accordingly, I would affirm the judgment of the Appellate Court in this case.
The defendant was charged with three crimes, one count of risk of injury to a child in violation of General Statutes § 53-21, and two counts of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1) and (3). Of course, he could not be found guilty of both manslaughter charges. The jury found him guilty of risk of injury to a child and manslaughter in the first degree in violation of § 53a-55 (a) (1).
State v. Greene, 209 Conn. 458, 462, 551 A.2d 1231 (1988).
The majority incredibly concludes that the crimes charged were discrete and involved distinguishable factual scenarios. I obviously read a different record than the majority. Indeed, as the Appellate Court pointed out, even the state’s attorney, before the trial court, acknowledged — at the time he opposed the severance of these charges — that they did not involve distinguishable factual scenarios. The state’s attorney argued for joinder before the trial court because “we have the same victim involved in all three counts. We have the same location involved in all three counts. We have the same victim but also roughly the same time period involved in all three counts.
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“I would also note the state believes the witnesses will be the same for both in this case — the two charges. It just doesn’t make any sense when the evidence is basically the same and the risk of injury charge necessarily involves what happened on the night of December 14 including his conduct on that particular evening. ” (Emphasis altered; internal quotation marks omitted.) State v. Delgado, 42 Conn. App. 382, 394-95 n.10, 681 A.2d 327 (1996).
The state concluded its argument for joinder with the following remark: “So the evidence I submit would be the same for both charges given the same victim, same location and the same time period.” (Emphasis added.)
The state’s attorney in this case kept his promise with respect to the order in which the witnesses testified and to the commingling of the evidence pertaining to the risk of injury and manslaughter charges. See footnotes 5 and 6 of this dissent. Joinder allowed the state to expose the jury to “the evidence of one case to convict the defendant in another case even though that evidence would have been inadmissible at a separate trial.” (Internal quotation marks omitted.) State v. Atkinson, 235 Conn. 748, 763, 670 A.2d 276 (1996).
Although the majority relies on State v. Jennings, 216 Conn. 647, 583 A.2d 915 (1990), it is totally inapposite to this case. The court held in Jennings: “Although the victim was the same in each case, the factual circumstances were different. One case involved a physical attack upon the victim in a parking lot and an abduction to an empty apartment. The other case involved a less serious altercation between the defendant and the victim in the home of the victim’s niece. The wounds suffered by the victim were of differing character and severity. The victim sustained bruising and deep knife wounds in the parking lot incident while she sustained comparatively minor, superficial cuts in the incident at her niece’s home. . . . Thus, the distinctiveness of the factual scenarios made it unlikely that the jurors would confuse the two cases.” (Citation omitted.) Id., 658-59.
In its case-in-chief, the state presented the testimony of seventeen witnesses. The following list of witnesses, in the chronological order in which they were called, demonstrates that the state was unable to keep the evidence for the two counts separate at trial. The subject matter of each witness’ testimony is included in parentheses.
(1) Paula Mancini, friend of child’s mother (risk of injury)
(2) Pauline Barnes, neighbor in downstairs apartment (manslaughter)
(3) Benjamin Barnes, neighbor (manslaughter)
(4) Detective John Whalen (manslaughter)
(5) Deborah Messina, forensic lab technician (manslaughter)
(6) Detective Paul Lengyel (manslaughter)
(7) Fred Beitman, landlord (manslaughter and risk of injury)
(8) Michael Fusaro, emergency medical technician for Bridgeport Ambulance Service (manslaughter and risk of injury)
(9) John Corris, emergency medical technician for Bridgeport Ambulance Service (manslaughter and risk of injury)
(10) Detective Giselle Doszpoj (manslaughter)
(11) Malka Shah, associate medical examiner for the office of the chief medical examiner (manslaughter and risk of injury)
(13) Deborah Spaight, pediatric resident in Bridgeport Hospital emergency room (manslaughter and risk of injury)
(14) Michelle Bruno, child’s aunt (risk of injury)
(15) Kieve Berkwits, senior attending physician for the department of pediatrics at Bridgeport Hospital (manslaughter)
(16) Sheila Collins, nurse at St. Joseph’s Family Medical Center (risk of injury)
(17) Regina Featherston, nutritionist for Women, Infants and Children (WIC) program in Norwalk (risk of injury)
The majority defensively claims that “the factual scenarios underlying the two crimes were separate and distinct,” but that misunderstands the Boscarino test. The discreteness factor of the Boscarino test also requires, and importantly so, a determination of whether the relevant evidence could have been and was presented on each count separately in order to avoid the commingling of the evidence so that it was less likely that the jury would be influenced in deciding one count by the evidence that was solely admissible in the other count. The following exceipt from the state’s attorney’s direct examination of Malka Shah, associate medical examiner for the state of Connecticut who performed an autopsy on the child, is an illustrative example of that precise danger — that the evidence presented to the jury was commingled in such a manner that there was a likelihood that the evidence relevant with respect to one count may have influenced the jury on the other count.
“[Stephen J. Sedensky III, Assistant State’s Attorney]: What signs of injury did you see as a result of your examination [of the child]?
“[Shah]: She did not have any injury in her chest, abdomen or neck organs. However, she did have injuries on her head.
“Q. Where were the injuries on her head?
“A. She had a hemorrhage on the left back of her scalp or the skin of her head. She also had a fracture of the skull on the left side. She also had a hemorrhage which was present around the brain, itself ....
“Q. As a result of that examination, were you able to determine what the cause of her death was?
“A. Yes, I was.
“Q. And what did you determine was the cause of her death?
“Q. When you say head injury, what do you mean?
“A. Head injury means it’s a fracture of the skull with subdural and subarachnoid hemorrhage. All of that caused her death.
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“Q. Now, what injury did you detect to the right leg?
“A. The right leg is not as straight as the left leg. . . . It’s broken. . . . The fractured ends are dislocated, which indicates this has not been treated because if there was a treatment then they would be in a straight line.
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“Q. Can you tell us at a minimum how old that fracture — that broken leg is?
“A. It’s a minimum of two weeks old — the fracture is.
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“Q. Doctor, showing you what has been marked as State’s Exhibit S, a videotape, did you have a chance to review that videotape?
“A. Yes, I did.
“Q. And did you have a chance to observe [the child] in that videotape?
“A. Yes, I did.
“Q. . . . [C]an you give us any information with regard to the healing leg fracture based on that — what you saw with regard to [the child’s] leg in that videotape?
“A. In the video, [the child] does not show any deformity at all on her right leg. . . . From looking at [the videotape], it looks like she does not have any bodily injuries on her.
“Q. If this injury had occurred before November 16, how long before November 16 would it have to have occurred?
“A. For the Doctor not to notice it, it would have to have occurred at least two weeks and before that — so that it had healed, the swelling ....
“Q. Now, based on your review of the videotape and those [medical] records [State’s Exhibit Q], would it be your opinion that the break to the leg took place before or after November 16, 1992?
“A. I would say after November 16, 1992. . . .
“Q. With regard to the bruises that you saw on the left side of [the child’s] face, can you just tell us where those were again?
“A. They were present — two of them were present on her jaw and three of them were present on the upper shoulder and neck area. . . .
“Q. Can you tell us what kind of mechanism or type of injury could have caused that type of bruise on the cheek?
“A. They’re small circular looking bruises. Many a time if the child has been handled roughly, with the ftnger[tips], it could be — or with the fingers, that can give you like that kind of injuries or even pinching of the face and cheek area can give you that kind of hemorrhages.”
The child’s mother did not testify at trial.
Although the defendant challenged the sufficiency of the evidence before the Appellate Court, this court did not certify that issue for review on appeal. State v. Delgado, 239 Conn. 920, 682 A.2d 1008 (1996).
I disagree with the majority that the defendant never claimed “that the manslaughter evidence unduly prejudiced his defense of the risk of ii\jury count.” Rather than resort to the defendant’s brief as to his claims, the majority culls one sentence out of the Appellate Court opinion for support of its claim. The defendant argued that he was prejudiced by the joinder
The defendant argues that he was prejudiced by the joinder in the remaining pages of his brief without limitation to any one count, and he ends his discussion with the conclusion that “[b]y consolidating the two cases, the trial court required the jury to undertake the difficult if not impossible task of listening to two somewhat similar cases against the defendant, and yet ignore . . . the inflammatory nature of the allegations of abuse and the alleged cause of the victim’s death.”
The majority concedes, as it must, that “the injuries inflicted on the victim, and especially the head injuries that resulted in her death, are shocking.” Notwithstanding its concession of the presence of shocking conduct that satisfies the second Boscarino factor, the majority ignores the remaining
The majority states that “the trial court instructed the jury that each count was a separate offense and, therefore, that the jury was required to consider them individually.” On two occasions, the trial court issued a one sentence instruction to the impaneled jury that the counts were to be treated separately. Those instructions were as follows: “[e]ach count is a separate crime and you must consider them separately in your deliberations,” and “each and every count is a charge of a separate crime and must be proved individually and separately beyond a reasonable doubt.” The majority would lead a reader into believing that these instructions were extensive, but, as indicated, both were sparse one sentence instructions.
The majority defensively claims that it is deciding this case “on well established principles." I do not quarrel with the “well established principles” set forth in Boscarino. My problem is the result oriented application of these principles. The majority opinion, as it must, concedes that the allegations of the iqjuries inflicted upon the sixteen month old victim under both counts are shocking — one a little less than the other — but still shocking. If I am wrong in my reading of the majority opinion — that is, if the majority claims that neither count is brutal or shocking, or if only one count is brutal or shocking under the Boscarino factors — the majority should say so. Once any one of the Boscarino factors is established, then we must determine whether it is possible to cure the prejudice with jury instructions and, if so, whether the jury instructions passed muster. In my view, no instruction could cure the prejudice caused by the joinder in this case. And even if it could have, the jury instructions consisting of two sentences; see footnote
The state, implicitly recognizing the tenuous position of its claim that none of the Boscari.no factors were present in this case, focused much of its brief and almost all of its oral argument on the claim that the underlying evidence of one count would have been admissible in a separate trial on the other count on various theories, including prior misconduct evidence. In doing so, the state sought “guidance” from this court with respect to the admissibility of the evidence, pointing out its import,anee because of the unfortunate proliferation of child abuse cases in Connecticut. As a result of this case, the state need not be concerned about being unable to get this prejudicial evidence before the jury in other cases. By allowing the state to join the two counts of risk of injury and manslaughter, the majority has enabled the state to get through the back door what it could not get through the front door under our rules of evidence. See footnote 3 of this dissent.
See footnote 13 of this dissent.